If you have ever had your workplace tested for potential hazardous material exposure and end up having trouble making sense of analytical results, you’re not alone. Regulatory requirements say one thing, and the NIOSH REL and/or ACGIH TLV numbers included on your reports say another, and it ends up being a potential source of confusion and frustration. In most cases, regulatory requirements show a significantly higher permissible level of exposure to hazardous materials than NIOSH REL and/or ACGIH TLV recommendations, and in some cases there may be no regulatory requirements at all.
Results that fall somewhere in the gray area can be particularly troublesome for employers: they find themselves in the unenviable position of explaining to their employees that, yes, they are exposed… but not illegally exposed. A likely response is for employees to pose the obvious question, “What exactly does that mean?”
Industrial hygienists are hired to make sense of complex, technical situations related to potential exposure. Perhaps we owe it to our clients to explain away these confusions clearly.
The Center for Public Integrity has recently published a series of investigative articles tackling the complex issue of worker exposure. Slow-motion tragedy for American workers approaches the gap between scientific and regulatory exposure limits directly. For the employer reading an article such as this, it may feel like an attack of journalistic activism, and perhaps it is. None-the-less, it raises significant issues that should be considered by employers determining what standard they should meet.
Employers are only legally obligated to maintain employee exposure below the OSHA PEL, but as OSHA itself writes in the Annotated PELs addendum to Table Z, “OSHA recognizes that many of its permissible exposure limits (PELs) are outdated and inadequate for ensuring protection of worker health.” This sentence forms the thesis of the Center for Public Integrity article: OSHA standards are dangerously out-of-date. OSHA does not disagree, writing, “Most of OSHA’s PELs were issued shortly after adoption of the Occupational Safety and Health (OSH) Act in 1970, and have not been updated since that time,” and, “Since 1970, OSHA promulgated complete 6(b) standards including new PELs for 16 agents, and standards without PELs for 13 carcinogens.” We can assume that the authors of the CPI would insert “only” in the second sentence at least once. This presumed criticism may not even find disagreement from OSHA, which goes on to write, “Industrial experience, new developments in technology, and scientific data clearly indicate that in many instances these adopted limits are not sufficiently protective of worker health.”
Where does this problematic difference originate from?
Politics – OSHA rules are laws passed just like any other.
Industry pressure has been widely claimed as the reason why OSHA has not been able to implement the silica standard it has pushed for years. But in the end, the political reasons are a secondary concern to the industrial hygienist or their client. If we are not required to meet anything except OSHA PELs, should we concern ourselves with non-enforced guidelines from NIOSH and ACGIH?
The short answer is, “Yes.” OSHA recognizes that technological advancement has been significant since 1970. OSHA used NIOSH and ACGIH research to establish its PELS. The subsequent separation reflects advances in both sampling ability and analytical sensitivity in the intervening 45 years. It’s the rare economic sector in which we continue to rely on 45-year-old technology when there have been significant improvements.
Neither NIOSH nor ACGIH create enforceable limits. NIOSH has a government mandate for research to be used in establishing regulatory limits by governmental agencies. ACGIH, on the other hand, is very careful to insulate itself from regulatory involvement. In the ACGIH statement attached to OSHA’s Annotated PELs document, the group writes, “The Threshold Limit Values (TLVs®) and Biological Exposure Indices (BEIs®) are developed as guidelines to assist in the control of health hazards. These recommendations or guidelines are intended for use in the practice of industrial hygiene, to be interpreted and applied only by a person trained in this discipline. They are not developed for use as legal standards and ACGIH® does not advocate their use as such.”
At the core of it all, we are left with state-of-the-industry best practices which the groups responsible for establishing disown as legal standards in significant contrast to admittedly outdated exposure levels from the agency capable of enforcing legal requirements. Are workers left exposed to significant health dangers because of this staggering gap? The CPI certainly makes that argument, and while it may not threaten employers, its reports do highlight a gap which is likely to threaten employers from a different direction.
The most famous push to protect worker health from occupational exposure is not a story of paternal government benevolence. Long after scientific investigation had made it clear that asbestos was a significant health hazard and asbestos mines and manufacturing corporations were well-informed of the dangers, the government was still promoting use of asbestos to the public. Governmental action followed civil lawsuits which won huge damages against corporations. Civil trials are not a matter of guilt or innocence – there is no establishment of “reasonable doubt.” They are carefully crafted appeals to a jury that the defendant knew or understood hazards and made decisions that damaged others in spite of that knowledge. Government is likely to move swiftly – for the same reasons it generally moves slowly – when newspapers across the country are reporting large damage awards to workers made sick by callous corporations while the government was not prioritizing such issues.
Class action lawyers do not care about ACGIH’s disclaimer because they don’t need to. As an expert witness, an ACGIH member’s importance is discussing the science behind the TLV and the groups reasoning for establishing it. Even as a hostile witness, the ACGIH when questioned why it does not advocate use of TLV as a legal standard can only answer that it doesn’t have the legal authority to do so. But in a civil trial, the question is not even one of legal standards. It is simply a question of knowledge either incorporated into decisions or ignored. Was the decision making within the corporation aware that lower limits existed? Did the corporate leadership factor the reasoning for those lower limits into its decisions? If corporate leadership did not, was the decision one of profit over worker safety? How does the jury feel about this decision making process when faced with sick workers, widows, and orphans?
Industrial hygienists are bound to a code of ethics. It requires us to honestly adhere to established sampling methodology, sample handling, and analytics. That code requires us to inform clients of both OSHA regulatory limits and NIOSH RELs/ACGIH TLVs because they do – generally – represent the state-of-the-industry. We will report the latter carefully as recommendations regardless of our personal beliefs on worker protection because they are self-described recommendations without legal validity. “Without legal validity” is a term of regulatory enforcement; it is not the same as “without validity”.
Similarly, this is not an industrial hygienist’s argument that clients should all voluntarily comply with NIOSH RELs and/or ACGIH TLVs supported by civil liability fear mongering. However, there is a growing body of evidence and activism that the minimum requirements provided by OSHA do not adequately protect workers. We can expect that regulations will catch up with best-practices and history suggests that they will do so after best-practices form the basis of successful civil litigation. Litigation where knowledge, understanding, and intent count. Employers who access the science, technology, and advice of industrial hygienists should be aware of and consider the regulatory-scientific gaps and reasons for them discussed above. Such consideration may be based on corporate conscience related to valuing and protecting workers or it may be a fiscal calculation that long-term costs of approaching exposure recommendations are lower than legal and potential damage costs. Industrial hygienists are very rarely in the position to make such decisions. Our goal is – beyond our investigation, testing, and data reporting – to help employers and employees to understand complex occupational health issues.